Meredith v. Overley et al

Filing 53

ORDER DENYING 42 Motion to Dismiss, without prejudice, on procedural grounds; ORDERED Defendants to File a Responsive Pleading or Motion within (30) Days from the dte of service of this order, signed by Magistrate Judge Michael J. Seng on 05/12/14. (30) Day Deadline (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DWAYNE MEREDITH, Plaintiff, 11 12 13 v. D. OVERLEY, et al., Case No. 1:12-cv-0455-LJO-MJS (PC) ORDER (1) DENYING UNENUMERATED RULE 12(b) MOTION WITHOUT PREJUDICE AND (2) REQUIRING DEFENDANTS TO FILE RESPONSIVE PLEADING OR MOTION WITHIN THIRTY DAYS Defendants. 14 (ECF No. 42) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Dwayne Meredith, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. The matter proceeds on an Eighth Amendment conditions of confinement claim against Defendants Overley, Benevidez, Gamboa. On November 19, 2013, Defendants Overley, Benevidez, Gamboa filed a motion to dismiss the action under the unenumerated provisions of Federal Rule of Civil Procedure 12(b) for failure to exhaust administrative remedies. (ECF No. 42); 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). On April 3, 2014, the United States Court of Appeals for the Ninth Circuit issued a decision overruling Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) with respect to the proper procedural device for raising the issue of administrative exhaustion. Albino v. Baca, No. 10-55702, 2014 WL 1317141, at *1 (9th Cir. Apr. 3, 2014) (en banc). Following 1 1 the decision in Albino, Defendants may raise the issue of exhaustion in either (1) a motion 2 to dismiss pursuant to Rule 12(b)(6), in the rare event the failure to exhaust is clear on the 3 face of the complaint, or (2) a motion for summary judgment. Albino, 2014 WL 1317141, at 4 *4. An unenumerated Rule 12(b) motion is no longer the proper procedural device for 5 raising the issue of exhaustion. Id. 6 For the reasons stated, the unenumerated Rule 12(b) motion is procedurally 7 deficient in light of the decision in Albino. The unenumerated Rule 12(b) motion shall be 8 denied, without prejudice, on procedural grounds. 9 10 Accordingly, for the reasons stated, it is HEREBY ORDERED that: 1. is DENIED, without prejudice, on procedural grounds; and 11 12 The unenumerated Rule 12(b) motion filed November 19, 2013 (ECF No. 42) 2. Defendants shall, within thirty (30) days from the date of service of this order file a responsive pleading or motion. 13 14 15 16 17 IT IS SO ORDERED. Dated: May 12, 2014 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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